JUDGMENT

P. K. TRIPATHY, J. — Order dated 18.11.1999 of the S.D.J.M., Angul in Crl. Misc. Case No. 51 of 1998 is under challenge in this application under Sec. 482 of the Code of Criminal Proce¬dure, 1973 (in short, ‘the Code’).

2. A brief sketch of the relevant facts and circum¬stances is relevant to consider the grievance of the petitioner. In that respect petitioner’s contention is that she is the wife of the opposite party. When the opposite party refused to main¬tain her, she filed an application under Sec. 125 of the Code registered as Criminal Misc. Case No. 11 of 1991 in the Court of S.D.J.M., Angul. On 13.1.1994 that application was allowed by granting her maintenance @ Rs. 500/- per month making it payable from the date of institution of the proceeding i.e., 25.1.1991. Petitioner filed application for realisation of the arrear main¬tenance, registered as Crl. Misc. Case No. 75 of 1994. In that application she claimed for realisation of arrear maintenance from January, 1991 to January 1994. In the meantime opposite party filed Crl. Revision No. 24 of 1994 in the Court of Sessions Judge, Dhenkanal. Learned Sessions Judge directed the opposite party to pay Rs. 4,000/- to the petitioner. On 2.7.1995 learned Sessions Judge dismissed that Criminal Revision and as against that the opposite party filed an application under Sec. 482 of the Code in this Court, registered as Crl. Misc. Case No. 2651 of 1995. As an interim measure, this Court directed the opposite party to pay monthly maintenance @ Rs. 300/-. Accordingly the opposite party paid Rs. 5,100/- covering a period of 17 months from August, 1996 to December, 1997, and thereafter also paid maintenance @ Rs. 300/- till July, 1998. On 8.3.1998 the applica¬tion under Sec. 482 of the Code was disposed of by reducing the quantum of maintenance to Rs. 450/- per month and, as stated by the petitioner and not disputed by the opposite party in that respect, the following order was passed by this Court :

“Considering the materials regarding scale of pay receivable by the petitioner, I reduce the quantum of maintenance to Rs. 450/- per month. If arrear of maintenance have not been paid, same shall be paid within three months. Any amount payable after taking note of the interim orders passed by this Court shall be paid within the aforesaid period.”

3. Thereafter petitioner filed an application under Sec. 125(3) of the Code claiming for realisation of the arrear mainte¬nance when the opposite party failed to pay the same in accord¬ance with the above quoted direction of this Court. That execu¬tion proceeding was levied for realisation of Rs. 30,500/-. The opp. party entered appearance and agreed to pay Rs. 19, 400/- and refused to pay the monthly maintenance from July 1994 to Decem¬ber, 1995 on the ground that prayer for recovery of that amount if barred by the first proviso to Sub-sec. (3) of Section 125 of the Code for not levying the execution within one year from the date on which such maintenance became due. Learned Magistrate allowed that objection of the opposite party and refused to issue distress warrant against the opposite party with respect to the maintenance for the aforesaid period of 18 months. It appears from the impugned order that the learned Magistrate declined to issue distress warrant in view of the ratio in the case of Bimala Dei v. Karna Mulia, 60 (1985) C.L.T. 224; and Upendra Mohapatra v. Smt. Kanchabala Mohapatra and others (1995) 9 OCR-15.

4. In the impugned order, learned S.D.J.M. has noted that :

“Admittedly during pendency of the Revision in the Sessions Court or pendency of Misc. Case in the Hon’ble High Court, no stay order for operation of the order of the S.D.J.M. directing the O.P. to pay the maintenance amount was passed. It is also admitted that no Execution case was filed for realisation of the arrear maintenance for the period from July-94 to December, 95, within one year from the date the amount for the above said period became due.”

5. As it